New Zealand Journal of Employment Relations


New Zealand Journal of Employment Relations
"The essential guide to employment"

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New Zealand Journal of Employment Relations
Volume 41  Number 3

In the latest New Zealand Journal of Employment Relations the following topics are covered. If you wish to read the full articles or download the entire NZJER issue you need to subscribe to the NZJER.

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Gordon Anderson*, Guest Editor

The third biennial conference of the New Zealand Labour Laws Association was hosted by the Faculty of Law at the Victoria University of Wellington on 27 November 2015. In Issue 41(2), the Journal published six papers from the conference. A further seven papers are published here.

*Professor of Law, Victoria University of Wellington

Creating an Elegant Solution
Helen White*


This opinion piece by Auckland barrister, Helen White, muses on the reasons why some labour reforms become an enduring and entrenched feature of labour law and others fail to do so. She suggests that reforms are likely to be enduring when they resonate strongly with the public, reflect international thinking and are accepted by the courts and legal profession.

*Specialist employment barrister, Auckland.

Protections, Loopholes and the Employment Court
Susan Robson*


Analysis of the Employment Court’s recent approaches to statutory workplace protections in the Equal Pay Act 1972, the Minimum Wage Act 1983, the Wages Protection Act 1983 and Part 6A, Employment Relations Act 2000 suggests that it currently lacks a consistent approach to the issue of protection.  The Court appears to be overly vulnerable to the way that proceedings are presented and argued, and it fails to consistently privilege purposive over other approaches to the interpretation of statutory protections.

*PhD candidate, Faculty of Law, University of Otago.

The Right to Reasonably Limited Working Hours in the Smartphone Era
Joss Opie*


Under the International Covenant on Economic, Social and Cultural Rights, everyone in New Zealand has the right to reasonably limited working hours. However, New Zealand law does not expressly recognise this right or generally limit the number of hours a person may work. Also, according to figures from the 2013 Census, just over 215,000 people work between 50–59 hours per week, and some 160,000 people work 60 hours or more per week. These figures indicate that many people in New Zealand do not enjoy the right to reasonably limited working hours. This article argues that New Zealand is not complying with its obligations under the Covenant in respect of working hours, or with related obligations concerning the family and health. It also proposes ways in which New Zealand could better comply with these obligations. In this context, the article considers the impact smartphones have on work, and the challenges they create in placing limits on work.

*Wellington-based lawyer specialising in employment law and member of the New Zealand Law Society’s Human Rights and Privacy Committee.

What are business internships, and do they offer opportunities for a symbiotic relationship?
Leigh Thomson and Josephine Bourke*


What is a business internship in the 21st century? The common understanding indicates that it is a way for people to gain experience within an industry. However, the range of opportunities available creates difficulty in defining internships, particularly as available places are marketed variously for course credit, overseas experience, general industry experience and summer work.

In the current business environment, there is room for relationships within internships to include similarities to those involved in modern apprenticeships. However, any comparisons with the reciprocal association involved in apprenticeships may ignore emerging difficulties. Many available internships are unpaid, and while they still offer opportunities to gain industry experience, such experiences are subject to economic and other pressures.

This paper considers the New Zealand context, poses questions around the symbiotic and exploitative aspects of the relationship, and includes the influence of New Zealand labour law. Finally, it proposes possible options to assist interns and employers to develop an appropriate, symbiotic relationship that includes reciprocal benefits.

*Lecturers, Open Polytechnic of New Zealand.

Why New Zealand Should Introduce Paid “Dad and Partner Leave”
Amanda Reilly* and Suzy Morrissey**


Paid parental leave was introduced in New Zealand as a 12-week period in 2002, expanded over a number of years to 16 weeks and, from 1 April 2016, became available for 18 weeks. Debate in New Zealand has focussed on the desirability of further extending the period of leave available and on widening eligibility. This paper, however, makes the case that the introduction of an independent entitlement to a separate period of paid parental leave for fathers/partners should be a priority. It argues that such a measure would further equality between men and women and would bring New Zealand law into line with corresponding policies in other developed economies and with International Labour Organization (ILO) recommendations. This paper also considers the question of the design of such an entitlement. It concludes that partner leave should be well paid, ring fenced for ‘dads and partners’ (as the equivalent Australian provision is), and at least two weeks long. The options that it could potentially be funded by employers rather than the state, and could be made compulsory, are also discussed.

* Amanda Reilly, Lecturer, School of Accounting and Commercial Law, Victoria University of Wellington
** Suzy Morrissey, PhD student, School of Accounting and Commercial Law, Victoria University of Wellington.

Employment Relationship Problem Resolution: A gap between objectives and implementation
Gaye Greenwood* and Erling Rasmussen**


This paper identifies a disjuncture between the policy objectives of the Employment Relations Act 2000 (ERA) and the Employment Relations Problem Resolution system. One objective of the ERA was the early resolution of employment relationship problems close to the workplace. The framing of workplace conflict as Employment Relationship Problems (ERP) heralded a paradigm shift from adversarial escalation of disputes to collaborative problem solving by early negotiation and mediation. Our research suggests that in practice there is a propensity to bypass the intentions of the ERA by confidential settlement negotiation or escalation to a personal grievance; thus, the aim of strengthening employment relationships through processes of early, low-cost, fast and fair conflict resolution by state sponsored institutions appears yet to be fully realised in the education sector.

Our research of ERP in the New Zealand education sector indicates the shortfall in meeting the original intentions of the ERA is related to three factors: 1) the complexity of contemporary employment relationships in education; 2) the state provision of processes for early resolution does not include conflict in complex stakeholder relationships; 3) a culture of complaint has a negative impact on trust in school employment relationships. Given that background, this paper sets the scene for the forthcoming publication of a model for collaborative conflict management that provides process guidelines for organisations under the current legislative framework.

*Gaye Greenwood is a Mediator and Senior Lecturer in the Management Department in the Faculty of Business Economics and Law at Auckland University of Technology.
** Erling Rasmussen, Professor of Work and Employment at Auckland University of Technology

The Meaning of “Social Origin” in International Human Rights Treaties: A Critique of the CESCR’s Approach to “Social Origin” Discrimination in the ICESCR and its (Ir)relevance to National Contexts such as Australia
Angelo Capuano*


A number of international human rights treaties prohibit discrimination on the basis of “social origin”. This paper discusses the meaning of the term “social origin” in international human rights treaties. It articulates what meaning United Nations (UN) treaty bodies attribute to the term “social origin”, and the concept of “social origin” discrimination, in the international human rights treaty each body monitors. This paper finds that the Committee on Economic, Social and Cultural Rights (CESCR), which monitors the implementation of the International Covenant on Economic, Social and Cultural Rights (ICESCR), is the only UN treaty body which provides a clear and detailed interpretation of the term “social origin” in an international human rights treaty (the ICESCR). It argues that the meaning which the CESCR attributes to the term “social origin” in the ICESCR may have some value to understanding what the term might mean in Australian legislation which prohibits discrimination based on “social origin”. This paper finds that, according to the CESCR, “social origin” in the ICESCR refers to “inherited social status”. This paper critiques the CESCR’s approach to “social origin” and “inherited social status”. It argues that the CESCR’s approach to “social origin” requires development if it is to have relevance and its intended effect (prohibiting discrimination on the basis of “inherited social status”) in national contexts such as Australia. This paper thus proposes a view of discrimination based on “inherited social status” (and therefore “social origin”) that has relevance and application in settings such as Australia.

* BCL (Oxford), GDLP (ANU), LLB (Vic) (Hons); PhD Candidate, Monash University.

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